Children have fundamental right to access and use internet: Supreme Court

The Supreme Court has held that children, like any other individual, have a fundamental right to access and use the internet.

“We have no hesitation in saying that the right to access and use the internet is a fundamental right of every individual under Article 21 read with Article 19(1)(a) of the Constitution. Our children, irrespective of their age, enjoy the same rights, and to deny the same altogether would be as absurd,” a Bench of Justices J.B. Pardiwala and Vinod K. Chandran held in an order.

The court said denying children this right would be akin to saying that individuals below a certain age did not have a conscience worth protecting or freedom of speech worth expressing.

The safety of children and their freedom were not at odds with each other, it said. “Our children are entitled to both,” the Bench orserved.

Issuing a slew of directions for protective mechanisms, restrictions drawn from other jurisdictions and grievance outlets, the court emphasised that intelligent restraints, rather than blanket bans, were the need of the day.

The court took a practical view that children did not cease to use the internet merely because the law prohibited them from doing so. “They continue to use the same, albeit without the knowledge of their parents or the authorities. They move to other platforms and websites that are unregulated and even more unsafe,” it said.

An atmosphere of hostility and stringent restrictions could stop children, enticed or threatened online, from reporting such incidents to parents, guardians and trusted adults for fear of reprisal for using the internet. “This would significantly undermine the safety of our children, who are already apprehensive about confiding such incidents, even without such restrictions, and defeat the avowed object of the POCSO Act,” the court said.

Even otherwise, it said keeping children away from social media platforms would, by no stretch of imagination, reduce incidents of online abuse reported in the media in news reports.

“All that we are trying to say is that any blanket restriction on access to the internet by children is nothing more than unproven measures of proven disproportionality. No jurisdiction has so far been able to demonstrate that children are any safer on account of such measures. Its efficacy is at best contested, and without question, not a substitute for the initiative and efforts required from all the stakeholders, be it the intermediaries, the law enforcement agencies, the Ministry of Electronics and Information Technology or the courts,” the Bench observed.

The Bench, however, said that their observations were not against age-based restrictions on online access. “We acknowledge that some form of safeguards are necessary for the safety of our children online and the moderation of the content accessible at their fingertips,” it said.

The court suggested a system that placed greater emphasis on parental consent, guidance and supervision of children’s access to social media platforms, along with a dedicated “child mode” for such accounts, with measures proportionate to the objective of ensuring their safety.